A. Misra, J.
1. Defendant No. 1 is the appellant against a reversing judgment. Plaintiff-respondent No. 1 filed the suit for declaration of title to and confirmation of possession of 24 decimals constituting the western half of plot No. 666 after declaring that the sale deed executed by defendant No. 3 in favour of defendant No. 1 is not valid and binding. The facts, in brief, are as follows:-- Plot No. 666 containing an area of 48 decimals belonged to and was recorded in the names of deceased Hadu Behera and Banchha Behera (defendant No. 3). Defendant No. 2. son of Hadu succeeded to his father's share. In a partition, defendant No. 2 got the western half, while defendant No. 3 got the eastern half. Plaintiff purchased the suit land from defendant No. 2 by a sale deed on 6-9-1952 and came into possession. As defendant No. 1 threatened to dispossess him on the basis of a sale deed executed by defendant No. 3 in his favour in 1940, he instituted the suit. Defendant No. 1 resisted the plaintiff's suit on the ground that Hadu and defendant No. 3 constituted a joint family possessing plot No. 666. On Hadu's death, defendant No. 3 as Karta of the joint family sold the entire plot to him for consideration under a sale deed dated 24-10-1940 to meet certain legal necessities of the family and since then he has been in possession of the same in assertion of his own right. Defendant No. 3 who entered appearance in the trial court pleaded that the sale deed in favour of defendant No. 1 on 24-10-1940 was a benami document and no title passed thereunder. The trial court dismissed the plaintiff's suit on the following findings; (1) The suit plot was the property of the joint family of Hadu and defendant No. 3; (2) on Hadu's death, defendant No. 3 became the Karta of the family; (3) defendant No. 3 executed the sale deed in favour of defendant No. 1 on 24-10-1940 for consideration to meet legal necessities of the family and delivered possession of the land to the purchaser (4) plaintiff, defendants Nos. 2 and 3 are not in possession of the suit land at any time since the date of sale in favour of defendant No. 1 in 1940; (5) the sale deed (Ex. A/2) executed by defendant No. 3 in favour of defendant No. 1 is genuine and not benami and (6) the suit is barred by limitation. On appeal by the plaintiff, the lower appellate court, while confirming the other findings of the trial court, held that the sale by defendant No. 3 in favour of defendant No. 1 in 1940 was not for legal necessity, and as such, not binding on defendant No. 2, the plaintiff's vendor and though defendant No. 1 is in possession of the entire plot, as ouster has not been pleaded, the claim of plaintiff to the extent of his share is not barred by limitation. Accordingly, the appeal was allowed and the plaintiff's suit decreed in part to the extent of his share.
2. The findings of the courts below that Hadu and defendant No. 3 constituted a joint family possessing the suit plot as joint family property; that on Hadu's death, defendant No. 3 became the Karta of the joint family and in that capacity made the alienation in favour of defendant No. 1 in 1940 under Ex. A/2; that since the date of purchase under Ex. A/2, defendant No. 1 remained in possession and that the alienation under Ex. A/2 is not for legal necessity are findings of fact, and as such, not assailable in second appeal.
3. Learned Counsel for appellant assails the judgment of the lower appellate court on the following grounds: Firstly, it is contended that an alienation by a father or manager of a joint family without legal necessity being voidable at the option of other coparceners, the suit not having been filed within twelve years from the date of alienation is barred. Secondly, though limitation for filing a suit to avoid the alienation may not commence where the alienee does not take possession, in this case as defendant No. 1 has been in possession from the date of sale, the suit is barred, i.e., where the alienee has come into possession. Article 144 of the Limitation Act will apply and the suit has to be filed within twelve years from the date the alienee takes possession. Lastly, it is stated that the lower appellate court has committed an error in rejecting the claim of adverse possession on the ground that ouster has not been pleaded. For respondent No. 1. it is contended that an alienation of joint family property by the Karta without legal necessity being void ab initio, there is no necessity for filing a suit by the non-alienating coparcener to avoid the same. Necessarily, therefore, the question of limitation will not arise. Secondly, it is urged that in such a case, the alienee will be deemed to be a cosharer with the non-alienating coparcener and unless ouster is proved, the alienee cannot claim any title by adverse possession. In the present case, as the partition between defendant Nos. 2 and 3 took place only in 1952, the suit having been filed within twelve years from that date is within tune.
4. There is some conflict of opinion on the question whether an alienation by a Karta without legal necessity is ab initio void or is only voidable. Mayne in his book on Hindu Law and Usage, 11th Edition, while dealing with this conflict of judicial opinion has summarised the position as follows:--
'Such an alienation must on principle be invalid as against the members of the family from its inception though they can elect to abide by it. The possession of a purchaser under an unauthorised alienation by the manager will be wrongful unless it is assented to or ratified by the other coparceners. In provinces where the alienor's own share is bound, it will be wrongful as to the share of the other coparceners. If all that is meant by the proposition that such an alienation is voidable, is that it is not so absolutely void as to be incapable of being assented to or ratified by the other coparceners, it would be correct though the terminology may not perhaps be happy.'
This being the position, where such unauthorised alienation by the manager has taken place, it is not necessary for the non-participating coparceners in all cases to get the alienation set aside before recovery of possession. In other words, as the title of the non-alienating coparceners in such cases is not bound by the sale, it will be open to him to recover possession on the basis of title subject of course to the question of limitation.
5. Article 126 of the old Limitation Act corresponding to Article 109 of the 1963 Act is applicable only to suits to set aside alienations of ancestral property by the father. This Article has no application to suits for recovery of possession of property unauthorisedly alienated by the Manager. Such a suit will be governed by the residuary Article 144 of the old Act corresponding to Article 65 of the new Limitation Act. The contention of appellant is that in the present case, in view of the findings of the Courts that defendant No. 3 alienated the entire property in favour of defendant No. 1 as Karta under Ex. A/2 in 1940 and that since then defendant No. 1 has been in possession of the same including the suit land as purchaser, the suit filed in 1962 is clearly barred and that defendant No. 1 has perfected a title by adverse possession irrespective of the invalidity of the sale at the inception, so far as defendant No. 2's share is concerned. On the other hand, for respondent No. 1, it is argued that till the date of partition between defendant No. 2 and defendant No. 3 in 1952, the cause of action for recoveryof the suit land did not arise and the possession of defendant No. 1 prior to that date cannot be adverse, as such possession must be deemed to be that of a cosharer. In support of his contention, learned Counsel for plaintiff-respondent No. 1 relies on the principle that mere possession by one co-sharer will not constitute ouster of the other and that a co-sharer's possession will be deemed in the eye of law to be on behalf of all the co-sharers. It is further argued that it makes no difference whether the possession is by the original cosharer or by a transferee from him. In support of these contentions, he has relied on the decisions reported in AIR 1952 SC 225 and (1956) 22 Cut LT 51 = (AIR 1956 Orissa 111). In the decision reported in AIR 1952 SC 225 (Gur Narain Das v. Gur Tahal Das), it was held that where the plaintiff is undoubtedly a cosharer in the properties he can maintain a suit for partition even though he is not in actual possession unless exclusion and ouster are pleaded and proved. In the decision reported in (1956) 22 Cut LT 51 = (AIR 1956 Orissa 111) (Patnala Bhimayya Subudhi v. Kundana Bibi), it was held that as between cosharers mere possession by one cosharer would not constitute ouster and that the principle of ouster as amongst the original cosharers applies with equal force as against the alienees from the cosharers. Learned Counsel for appellant does not dispute the broad proposition of law laid down in the aforesaid decisions that mere possession of a cosharer will not constitute ouster of the others, but contends that on the findings in the present case, the points for determination are whether the suit to recover possession is barred and defendant No. 1 can be held to have prescribed a title in respect of the share of defendant No. 2. Admittedly, defendant No. 3 conveyed the entire plot under the sale deed (Ex. A/2) to defendant No. 1 in 1940 and it is found that on the basis of Ex. A/2. defendant No. 1 has been in possession since 1940. Defendant No. 1 in para. 7 of his written statement in addition to alleging that the alienation is supported by legal necessity categorically pleaded that he has been in possession of the entire plot openly and in assertion of his own right Therefore, it is not correct to say that ouster was not pleaded.
In the Full Bench decision of Madras High Court reported in AIR 1942 Mad 622 (FB). (Palania Filial v. Amiath Ibrahim), it was held:
'Where some co-owners usufructuarily mortgage specific items of property ..... and the mortgagee enters into possession ..... a suit to recovershare therein by the other co-owner is barred under Article 144 of the Limitation Act at the end of twelve years of such possession.'
The same view has been reiterated ina decision of Kerala High Court reported in AIR 1963 Ker 249, (Konnan Sankuv. Porvathi Amma). In the decision reported in AIR 1964 All 425 (Kranti Chandra v. Chhotelal). it was observed that while it is true that possession by oneco-owner of the entire joint propertywill be possession on behalf of all theco-owners such possession may be referable to his adverse possession. Secondly, where after the transferee has perfected his title by adverse possession, acosharer transfers his share to anothera suit for partition by such transfereeagainst the previous transferee from theco-owner who was in exclusive possession is barred by limitation. In this suit,the cause of action for the non-transferring cosharer arose when defendant No. 1came into possession on the strength ofhis purchase in 1940 and limitation mustbe deemed to have commenced fromthat date. Therefore, even if there wasany partition between defendant No. 2and defendant No. 3 in 1952. the saidpartition cannot give a fresh cause ofaction, so far as the property alienatedin 1940 is concerned, and as such, thesuit is barred by limitation. Possessionto be adverse must be adequate in continuity, publicity and extent to show thatit is adverse to the competitor. On thefinding that defendant No. 1 was in continuous possession of this property in assertion of his own right openly, the elements required for prescribing a titleare satisfied. These circumstances themselves prove an implied ouster and whenin the written statement a claim of adverse possession has been made, such aclaim cannot be rejected on the groundthat ouster has not been pleaded. Therefore, the suit is barred under Article 144of the Limitation Act as the possessionof defendant No. 1 has become adverseagainst defendant No. 2 and plaintiff cannot claim to have acquired any validtitle to the share of defendant No. 2 toentitle him to a partition and recoveryof possession of that share.
6. In the result, the appeal is allowed with costs, the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court restored.